State v. Foster

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ROBERT J. FOSTER, Appellant.

No. 1 CA-CR 23-0370

FILED 11-07-2024

Appeal from the Superior Court in Maricopa County
No. CR2019-031015-001
The Honorable Lisa Ann VandenBerg, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellee

Piccarreta Davis Keenan Fidel, PC, Tucson
By Michael L. Piccarreta, Louis S. Fidel, Jefferson L. Keenan
Counsel for Appellant

OPINION

Presiding Judge Daniel J. Kiley delivered the opinion of the Court, which
Chief Judge David B. Gass joined. Judge Kent E. Cattani dissented.
 STATE v. FOSTER
Opinion of the Court

K I L E Y, Judge:

¶1 A jury convicted Robert J. Foster of leaving the scene of a fatal
accident in violation of A.R.S. § 28-661. He argues that the superior court
abused its discretion in instructing the jury and in several evidentiary
rulings. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On August 3, 2019, a BMW collided with a Toyota Camry at
the intersection of Williams Drive and Miller Road (hereinafter,
“Hayden/Miller”)1 in Scottsdale. The collision killed the driver of the
Toyota and injured the BMW’s passenger.

A. The Collision

¶3 Viewed in the light most favorable to sustaining the jury’s
verdict, see State v. Rios, 255 Ariz. 124, 127, ¶ 2 (App. 2023), the evidence
shows that, at the time of the collision, Ramon Carrasco was driving the
BMW at a speed exceeding 100 mph, more than double the posted speed
limit of 45 mph. Eyewitnesses reported seeing the BMW “racing” a blue
Lamborghini before the BMW struck the Toyota. Foster was driving the
Lamborghini.

¶4 Before the collision, the Lamborghini and the BMW had been
traveling north on Hayden/Miller when they stopped side-by-side at a red
light at the Thompson Peak Parkway intersection. According to the BMW’s
passenger, “Jenny” (a pseudonym), Foster looked over at the BMW and
gave “a thumbs up and a head nod,” and Carrasco nodded back. When the
light turned green, the cars accelerated simultaneously, “going fast.” Jenny
described the cars as playing a game of “cat and mouse,” “accelerating
together and then braking and then accelerating,” like a “teasing type of
thing.”

¶5 Continuing north, Foster and Carrasco stopped side-by-side
at another red light at the intersection with Deer Valley Road. Witness
Jessica V., who was stopped at the same intersection, heard “the two cars
revving their engines.” When the light turned green, the Lamborghini and
the BMW “took off again,” driving “very fast.”

1 Evidence at trial showed that the street’s name changes from Hayden

Road to Miller Road when it intersects with Deer Valley Road. For clarity’s
sake, we will refer to the roadway as “Hayden/Miller.”

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Opinion of the Court

¶6 Jenny, who was watching a video on her phone, looked up
when she realized that “this acceleration was lasting longer than the
previous ones.” Turning to her left, she saw Foster’s Lamborghini through
the BMW’s left rear window, with its “front end” by the BMW’s left rear
tire. She then heard Carrasco yell, “Oh, fuck!” Looking forward again, she
saw the Toyota turning left in front of the BMW. The cars collided, creating
what bystanders later described as an “explosion,” with “smoke” and
“parts . . . flying everywhere.” After the collision, multiple witnesses saw
Foster’s blue Lamborghini “speeding” away west on Williams Drive.

¶7 Several other motorists stopped at the collision site to offer
assistance. Carrasco and Jenny were helped out of the BMW before it burst
into flames. The driver of the Toyota, “Laura” (a pseudonym), died at the
scene.

B. The Investigation

¶8 Law enforcement quickly arrived at the scene. Several
eyewitnesses told the responding officers that the BMW had been “racing”
a “blue Lamborghini” with “a first responder plate or a plate that had a blue
and a red line on it.” Video from a nearby “photo radar site” showed a
“light blue Lamborghini” shortly after the collision. After searching
registration records, a Scottsdale police detective identified a blue
Lamborghini with a first responder plate that was registered to a nearby
business owned by Foster. The general manager of a Lamborghini
dealership in Scottsdale confirmed that the vehicle had been sold to Foster.

¶9 On August 15, 2023, police placed Foster’s home under
surveillance. Later that day, two detectives saw Foster leave his home
driving a red pickup truck. They instructed a motorcycle officer in the area
“to observe [Foster] for any traffic violations and then make an appropriate
stop.” After seeing the truck drive past a stop sign without coming to a
complete stop and then travel approximately 10 mph over the posted speed
limit, the motorcycle officer initiated a traffic stop. As he asked Foster for
his license, registration, and proof of insurance, the two detectives arrived
at the scene and parked behind Foster’s truck. Foster later testified that
when he saw “two plain clothes detectives” getting out of their vehicle, he
“became very nervous,” explaining, “I had a feeling of why they were
contacting me at that point.”

¶10 Detective Johnson approached Foster and stated that he was
“investigating a fatal accident that occurred on August 3” at the intersection
of “Miller and Williams.” He asked if Foster was “familiar with that

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Opinion of the Court

accident at all,” and Foster replied, “I really shouldn’t say anything.” The
detective then told him that witnesses had seen his Lamborghini near the
collision. Foster replied, “I really don’t want to say anything. I saw a kid
driving crazy.” When asked to clarify, Foster elaborated that the “kid” was
driving “pretty fast” and “had a fast crazy car.” Detective Johnson then
asked if he saw the collision; Foster responded that he “turned before the
crash.” Foster then invoked his right to counsel, at which point the detective
arrested him. Detective Johnson’s conversation with Foster at the scene
lasted less than five minutes.

C. Legal Proceedings

¶11 The State charged both Foster and Carrasco with second-
degree murder and aggravated assault in connection with Laura’s death
and Jenny’s injuries. Foster was also charged with leaving the scene of a
fatal accident. The two men were tried separately.

¶12 Before trial, Foster moved to suppress the statements he made
during the traffic stop, arguing they were obtained as a result of an
unlawful detention. After an evidentiary hearing, the court suppressed
certain statements Foster made after his arrest but denied his motion to
suppress his pre-arrest statements during the traffic stop.

¶13 Foster also filed a motion in limine seeking leave to present
evidence that Carrasco had a poor driving history (including six speeding
tickets and a license suspension), was involved in a street racing club, and
had tetrahydrocannabinol (“THC”) in his system at the time of the collision.
Foster argued that such evidence was admissible because it concerned the
culpability of a third-party, noting his “constitutional right to be afforded a
meaningful opportunity to present evidence in his defense” and asserting
that the evidence shows Carrasco was “the sole cause of the accident.” After
a hearing, the court denied Foster’s request.

¶14 The superior court conducted an 11-day jury trial between
April 18, 2023, and May 10, 2023. The State called Jenny as a witness, who
testified to the events described in ¶¶ 4-7 above. The State called eleven
other eyewitnesses to testify about the collision and Foster’s driving before
and immediately afterwards. One such eyewitness, Jessica P., testified that
she was driving home that day when she turned left at the intersection of
Hayden/Miller and Williams Drive and, while driving south on
Hayden/Miller, saw two northbound cars driving “next to each other”
while “racing.” “They were going really fast,” she stated, “and they zoomed
past me.” Explaining that she works at a “[r]ace car performance shop” and

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Opinion of the Court

has experience “in dragster racing,” Jessica P. estimated that the two cars
were going “between 115 and 120” mph on Hayden/Miller as they drove
toward the Williams Drive intersection.

¶15 Another eyewitness, Beli M., testified that he saw the BMW
and the Lamborghini driving at “extreme speeds” on Hayden/Miller.
When he realized “they were racing,” he stated, he “hit the horn” and
yelled, “What are you doing, idiots?”

¶16 Joanne P. testified that she saw the Lamborghini and BMW
“pull[] up next to” each other at the “intersection at [Hayden/Miller] and
Thompson Peak” and then “accelerate[] quickly from the light,” traveling
“much faster than would be normal for [the] area.” The cars stopped at the
intersection of Deer Valley Road; when the light changed, they accelerated
again at a high rate of speed. Joanne P. recalled remarking that the cars were
driving so fast that she feared “[s]omething really bad” might happen.
Moments later, she saw what “looked like an explosion in the intersection.”
Joanne P.’s husband Frank P. likewise testified that after watching the cars
engaging in a “drag race,” he saw “a giant cloud of smoke” at the
intersection of Hayden/Miller and Williams Drive. He further stated that,
as he reached the intersection, “the smoke or whatever was obscuring the
intersection finally dissipated,” and he could see “the Lamborghini . . .
going down Williams [Drive].”

¶17 The State’s accident reconstruction expert, Detective
Strohmeyer, testified that the BMW was traveling at a speed of
approximately 140 mph about three-and-a-half seconds before the collision.
On redirect, the State asked Strohmeyer, “Is your testimony here today that
the crash would not have happened had the BMW not been racing the
Lamborghini?” Foster objected on several grounds. After the court
overruled Foster’s objection, Strohmeyer stated:

The reconstruction shows that the BMW was going 102 to 106
[mph] at impact. The [analysis] shows that it was doing 142
prior to that. If those speeds weren’t there, the crash wouldn’t
have happened. As a reconstructionist, I can’t answer to what
he was doing prior to that.

¶18 The State then asked whether Strohmeyer had “looked at this
case as an investigator,” to which he answered, “Yes.” The State asked
whether that fact would “adjust [his] answer in any way.” Foster re-
asserted his prior objections, which the court again overruled. Strohmeyer

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Opinion of the Court

responded, “My opinion that they were racing and that the crash wouldn’t
have happened if they were not racing? Yes.”

¶19 Accident reconstruction expert Charles Dickerson testified for
the defense. Among other things, Dickerson testified that because the
Lamborghini successfully negotiated the turn from Hayden/Miller onto
Williams Drive, it could not have been traveling at a speed greater than 39
mph when it reached the intersection.

¶20 Foster testified on his own behalf. He denied “racing” the
BMW. He admitted, however, that while the two cars were stopped at a
traffic light on Hayden/Miller, the driver of the BMW “gave [him] a
thumbs-up or something like that” and he “[p]robably waved” back in
response. When “[t]he BMW took off,” Foster admitted, “I did accelerate
after he took off.” Foster explained that he “floored” the accelerator and
“accelerate[d] hard.” He insisted, however, that he only accelerated for
“maybe three or four seconds” before slowing down because he saw the
traffic light at the upcoming Deer Valley Road intersection “turning red.”
The two cars stopped at that intersection, Foster testified, and when the
light changed, he “accelerated hard” while the BMW “took off too.” Foster
acknowledged that he was “showing off” but asserted that he “took [his]
foot off the gas pedal” after only “five to six seconds” of acceleration, and
so the BMW began “pulling away from [him].” Even though he was no
longer accelerating, however, Foster admitted that he was “going over the
speed limit” by “[p]robably quite a bit” as he approached the Williams
intersection. He “guess[ed]” that he was 300 to 400 feet from the intersection
when, he stated, he “saw some sort of . . . explosion.”

¶21 Foster testified that he had intended to continue straight on
Hayden/Miller at the intersection but, upon seeing the “explosion,” he
decided, “in a split second,” to turn left at the intersection. He also decided,
he admitted, not to pull over and stop at the scene. He testified that he
“knew [he] didn’t have to stop from a legal standpoint” because he “was
not involved in the collision.” “[A]fter thinking about it,” however, he “felt”
that driving away was “the wrong decision from a moral standpoint.” He
expressed remorse for the manner in which he drove before the collision,
stating, “I drove fast and I regret that.”

¶22 The jury found Foster guilty of one count of leaving the scene
of a fatal accident but not guilty of second-degree murder (and all lesser-
included homicide offenses) and not guilty of aggravated assault. The jury
also found that Foster did not “cause” the accident, a finding that

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Opinion of the Court

established the offense as a class 3 rather than a class 2 felony. See A.R.S.
§ 28-661(C). The court placed Foster on three years’ probation.

¶23 Foster timely appealed. We have jurisdiction. See Ariz. Const.
art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4033(A)(1).

DISCUSSION

¶24 Foster was convicted of violating A.R.S. § 28-661(A),2 which
requires a driver of a vehicle “involved” in a fatal accident to:

1. Immediately stop the vehicle at the scene of the accident or
as close to the accident scene as possible but shall
immediately return to the accident scene.

2. Remain at the scene of the accident until the driver has
fulfilled the requirements of § 28-663.

Section 28-663, in turn, requires the driver of a vehicle involved in a fatal
accident to (1) “[g]ive the driver’s name and address and the registration
number of the vehicle the driver is driving,” (2) “[o]n request, exhibit the
person’s driver license to the person struck or the driver or occupants of or
person attending a vehicle collided with,” and (3) “[r]ender reasonable
assistance to a person injured in the accident.” A.R.S. § 28-663(A).

I. Jury Instructions

¶25 Foster argues that the superior court gave erroneous jury
instructions and, further, abused its discretion by refusing to give an
instruction that he requested. “We review a trial court’s decision to give a
jury instruction for an abuse of discretion.” State v. Ewer, 254 Ariz. 326, 329,
¶ 10 (2023) (citation omitted). “We review de novo whether a trial court
properly instructed the jury, and whether the jury instructions properly
state the law.” Id. (cleaned up). “We do not assess jury instructions in a
vacuum, instead looking to the instructions as a whole and in conjunction
with counsel’s closing argument.” State v. Rix, 256 Ariz. 125, 137, ¶ 38 (App.
2023). “The sole purpose of jury instructions is to correctly inform jurors of
the applicable law.” Id. “Erroneous jury instructions are subject to a

2 We cite the current version of A.R.S. §§ 28-661 and -663. Although each

statute has been amended since Foster committed the offense, the
amendments do not affect our analysis.

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Opinion of the Court

harmless error analysis.” State v. Dann, 205 Ariz. 557, 565, ¶ 18,
supplemented, 206 Ariz. 371 (2003).

A. “Involvement in Collision” Instruction

¶26 The offense of leaving the scene of a fatal accident requires the
State to prove, among other things, that the defendant was “driving a
vehicle involved in an accident.” See A.R.S. § 28-661(A). Consistent with
Section 28-661(A), the superior court instructed the jury that “[t]he crime of
leaving the scene of a fatal accident requires that the defendant . . . [w]as
driving a vehicle involved in an accident” resulting in a death and “[f]ailed
or refused to remain at the scene” until the defendant had fulfilled his legal
duties.

¶27 The court also gave the following instruction on the
“involvement” element of the offense:

Involvement in Collision: A driver who races another driver
who collides with a third car, may be found to have actively
participated in the immediate chain of events culminating in
the collision and, by any measure, have been a participant and
implicated and entangled in the accident for purposes of
leaving the scene of an accident including injury or death
without regard (or condition upon) actual physical contact
with the struck vehicle [sic].

¶28 Foster challenges the “Involvement in Collision” instruction
on various grounds, including that it purportedly “misstate[d] the law” by
defining “involvement” incorrectly.

¶29 Although the word “involved” is not defined in Title 28, we
have defined “involve” according to its ordinary meaning as “entangle,”
“implicate,” or “draw in as a participant.” State v. Korovkin, 202 Ariz. 493,
497, ¶ 15 (App. 2002) (quoting Webster’s Third New International
Dictionary 1191 (1971)). In Korovkin, the defendant drove from the scene
after racing another car that struck a third car, causing a fatality. 202 Ariz.
at 494, ¶¶ 2-3. The defendant appealed his conviction for violating A.R.S.
§ 28-661(A), arguing that he was not “involved” in the accident as required
by the statute because “the car he was driving was not physically part of
the collision.” Id. at 497, ¶¶ 13-14. The Court held that “involvement” for
purposes of A.R.S. § 28-661 did not require physical contact, stating,

a driver who races another driver who collides with a third
vehicle actively participates in the immediate chain of events

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Opinion of the Court

culminating in the collision and, by any measure, has been a
participant and is implicated and entangled in the accident,
notwithstanding any absence of actual physical contact with
the struck vehicle.

Id. at 497, ¶¶ 14-15. The challenged “Involvement in Collision” instruction
was taken from this passage in Korovkin.

¶30 Foster complains that the challenged instruction “is not an
approved jury instruction.” Citing “the dangers of basing jury instructions
on isolated, selective quotes from appellate decisions,” Foster argues that
the language in Korovkin used in the challenged instruction was nothing
more than an observation relating only to “the specific facts of that case.”

¶31 Although appellate opinions are a useful reference in crafting
jury instructions, this Court has discouraged verbatim quotes from
opinions, in part because opinions often contain legal terms that may
confuse the jury. See State v. Martinez, 175 Ariz. 114, 120 (App. 1993).
Instructions should express legal principles in everyday language. Id.
Moreover, legal principles and conclusions set forth in opinions are often
case-specific. Quoting verbatim from holdings premised on dissimilar facts
risks importing reasoning that is inapplicable to the case before the jury.

¶32 Nevertheless, giving an instruction containing language
taken from case law is not error as long as it properly reflects the law. State
v. Rutledge, 197 Ariz. 389, 392, ¶ 11 (App. 2000). Here, the challenged
instruction informed the jury that criminal liability may attach to a driver
who “actively participated in the immediate chain of events culminating in
the collision,” and that Foster “may be found to . . . have” been a participant
“in the accident for purposes of leaving the scene of an accident” under
Section 28-661 even if his vehicle did not physically collide with another.
The challenged instruction thus accurately reflects Arizona law as set forth
in Korovkin. The fact that it mirrored language from an appellate opinion
does not automatically render the instruction improper.

¶33 Foster argues that Korovkin is distinguishable, and so the
challenged instruction was inapposite, because unlike the racing drivers in
that case, Foster “was not traveling side-by-side with [Carrasco] at a high
rate of speed through the same intersection when [Carrasco] collided with
[Laura’s] vehicle.”

¶34 But nothing in Korovkin limits its application to situations
where two racing drivers are “side-by-side” when one of them strikes a
third vehicle. Instead, by explaining that the term “involved” may refer to

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Opinion of the Court

“being part of, contributing to and being a participant,” Korovkin makes
clear that criminal liability is based on the conduct of the racing drivers
rather than the location of their vehicles at the time of the collision. 202 Ariz.
at 497, ¶ 16 (citation omitted).

¶35 Noting, correctly, that “whether a motorist was, in fact,
‘involved’ in an accident is an essential element of the offense,” Foster
argues that the challenged instruction incorrectly told the jury that “any
driver ‘who races another driver’ is ‘involved’ in any accident the other
driver may be involved in, no matter when the ‘racing’ may have stopped.”
As a result, he contends, the challenged instruction essentially “directed the
jury to find for the state on this issue.”

¶36 Foster mischaracterizes the challenged instruction. The
instruction does not, as Foster contends, tell the jury that Foster was
“involved” in the collision if he “raced” Carrasco at any point beforehand.
On the contrary, as noted above, the instruction defined “involvement” for
purposes of Section 28-661 as “active[] participat[ion] in the immediate
chain of events culminating in the collision.” This definition is consistent
not only with Korovkin, but with numerous other cases construing statutes
like Section 28-661. See, e.g., State v. McClain, 880 S.E.2d 889, 896-98 (W. Va.
2022) (holding that a vehicle’s being “involved” in a crash under leaving-
the-scene statute did not require physical contact and stating that
“involved” means “having a part in something” or “connected or
concerned with . . . something”) (citations omitted); Comstock v. State, 573
A.2d 117, 122 (Md. Ct. Spec. App. 1990) (holding that defendant could be
found to be “involved” in an accident for purposes of leaving-the-scene
statute when the fatal collision was “a natural consequence” of defendant’s
abrupt lane change, which caused other motorist to swerve into oncoming
traffic); People v. Bammes, 71 Cal. Rptr. 415, 418-19 (Cal. Ct. App. 1968)
(holding that defendant’s vehicle was “involved” in collision between two
other vehicles for purposes of leaving-the-scene statute when defendant’s
left turn in front of the other vehicles forced their evasive action resulting
in their colliding; because “involvement” under leaving-the-scene statute
includes “connection” with the accident in a “natural or logical manner,”
“[o]ne can be involved . . . in an accident without being its legal cause”)
(citations omitted).

¶37 In a related vein, Foster contends that the challenged
instruction “constituted an improper comment on the evidence” by
“endors[ing] the state’s argument on a highly contested issue in the case.”
Thus, he maintains, the instruction violated “Arizona’s explicit
constitutional prohibition against judges commenting on the evidence.”

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Opinion of the Court

¶38 The Arizona Constitution prohibits judges from interfering
with a jury’s independent evaluation of the evidence. Ariz. Const. art. VI,
§ 27. A court “violate[s] Arizona’s constitutional prohibition against
commenting on the evidence” if it “express[es] an opinion as to what the
evidence proves.” State v. Rodriguez, 192 Ariz. 58, 63, ¶ 29 (1998).

¶39 Here, the challenged instruction did not purport to tell the
jury what the evidence proved. Instead, it told the jury that it could—not
that it must—find a “driver who races another driver who collides with a
third car” to have “actively participated in the immediate chain of events
culminating in the collision.” The instruction thus correctly stated the law
and left it to the jury to determine whether Foster “actively participated in
the immediate chain of events culminating in a collision.” We reject Foster’s
contention that the challenged instruction told the jury what conclusions to
draw or otherwise constituted an improper comment on the evidence.

B. Mens Rea Instruction

¶40 Section 28-661 does not specify a mens rea for the felony
offense of leaving the scene of a fatal accident. Nevertheless, Arizona courts
have long recognized that the statute does not create a strict liability offense.
See State v. Lee, 53 Ariz. 295, 301 (1939) (holding that a driver cannot be
criminally liable for leaving the scene of an accident unless the State alleges
and proves that the driver “knew that the collision had occurred”); State v.
Porras, 125 Ariz. 490, 493 (App. 1980) (holding that a driver cannot be
criminally liable for leaving the scene of an accident unless the State proves
a defendant had either actual or constructive knowledge that the accident
caused injury to another).

¶41 The court gave the following mens rea instruction:

The State must prove that the defendant actually knew of the
injury to another or that the defendant possessed knowledge
that would lead to a reasonable anticipation that such injury
had occurred.

¶42 Foster contends that this instruction misstated the law by
omitting an “essential element” of the offense of leaving the scene of a fatal
accident—namely, “knowledge of involvement in the accident.” Citing case
law from other jurisdictions, Foster maintains that the “overwhelming
weight of authority” recognizes that “a motorist must have knowledge of
involvement in an accident” to be criminally liable for leaving the scene.
Foster’s argument raises a question of statutory construction subject to de
novo review. See State v. Holle, 240 Ariz. 300, 302, ¶ 8 (2016).

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¶43 We agree with Foster that “knowledge of involvement in the
accident” is an element of the crime established by Section 28-661.
Interpreting the statute to require the State to prove a defendant’s
knowledge of his or her involvement in an accident is consistent with our
court’s recognition that “[c]ommon sense and justice alike revolt at the idea
that a man may be held criminally responsible for something which he does
not even know he has done.” Porras, 125 Ariz. at 492 (citation omitted).
Further, to interpret the statute in this manner is consistent with a purpose
of Section 28-661: “to prohibit drivers from seeking to evade civil or
criminal liability by escaping before their identity can be established.” State
v. Rodgers, 184 Ariz. 378, 380 (App. 1995). That purpose would not be served
by imposing criminal liability upon a driver who is unaware of the facts
making his or her departure from an accident scene unlawful. See Clancy v.
State, 313 P.3d 226, 230 (Nev. 2013) (noting that a hit-and-run statute’s
purpose “is not served where the driver is unaware of the event requiring
him to stop and provide identifying information and render assistance”).

¶44 We further agree with Foster that the mens rea instruction
was deficient. The instruction told the jurors that the State was required to
prove only that Foster knew or should have known “of the injury to
another,” without informing them that the State was required to prove
Foster’s knowledge of any other fact surrounding the accident. By failing to
instruct the jury that the State must prove Foster’s knowledge of all of the
facts that establish his criminal liability under Section 28-661, the
instruction was incomplete, and therefore erroneous.

¶45 Nevertheless, giving an instruction that omits an element of
the offense may be harmless error if the facts establishing the missing
element are undisputed. State v. Fullem, 185 Ariz. 134, 138 (App. 1995)
(“Arizona has traditionally followed the rule that the failure to instruct the
jury on an essential element of an offense is not fundamental error where
there is no issue as to that element.”). Failure to instruct the jury on the mens
rea required to commit the charged offense is subject to harmless error
review. See Neder v. United States, 527 U.S. 1, 15 (1999) (subjecting jury
instruction that omitted element of an offense to harmless error review); see
also State v. Yazzie, 232 Ariz. 615, 617-18, ¶¶ 10-12 (App. 2013) (conducting
harmless error review after concluding “the court did not instruct jurors
regarding an element of the offense that the State was required to prove
beyond a reasonable doubt”).

¶46 To be criminally liable under Section 28-661, a driver must
know that an accident occurred, know or have reason to know that injury
had resulted, and be aware of his own actions that establish his

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participation in the events culminating in the accident. Here, Foster never
claimed to lack knowledge of his own actions. Although he denied “racing”
the BMW, he admitted he exchanged non-verbal communications with its
driver when the vehicles were stopped side-by-side, and that, when the
BMW “took off,” he “floored” his gas pedal as well. The two vehicles
stopped next to each other at a red light at the next intersection, Foster
testified, and when the light changed, he again “accelerated hard” while the
BMW “took off too.” Foster further admitted that he was “showing off.”
Foster never disputed that he knew that the BMW was involved in an
accident, nor did he dispute that the severity of the accident—which he
described as an “explosion”—put him on notice of the likelihood of injury.
Foster thus knew all of the facts that establish his participation in events
culminating in a fatal accident. Under these circumstances, the failure to
instruct the jury that the State had to prove that Foster “knew” these
undisputed facts, though error, was harmless. See Fullem, 185 Ariz. at 138;
see also Neder, 527 U.S. at 17 (“[W]hen a reviewing court concludes beyond
a reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict would
have been the same absent the error, the erroneous instruction is properly
found to be harmless.”).

¶47 Foster denies that his knowledge of the relevant facts was
undisputed, insisting that his “knowledge of [his] involvement in an
accident” was “highly disputed.” In support of his argument, Foster cites
his own testimony that he believed he “didn’t have to stop from a legal
standpoint” because he “knew [he] wasn’t actually involved in the
accident.”

¶48 Foster’s argument conflates two distinct concepts:
(1) knowledge of the relevant facts surrounding the accident and
(2) knowledge of the legal significance of those facts, i.e., that those facts
establish Foster’s “involvement” in the accident as the term is used in A.R.S.
§ 28-661. While a defendant’s knowledge of the relevant facts surrounding
the fatal accident is indisputably an element of the offense set forth in
Section 28-661, a defendant’s appreciation of the legal significance of those
facts, i.e., that they establish a violation of Section 28-661, is not an element
of the offense. See generally Bryan v. United States, 524 U.S. 184, 192-93 & n.14
(1998) (explaining that “the knowledge requisite to knowing violation of a
statute” is “knowledge of the facts that constitute the offense”) (cleaned up);
see also State v. Romero, 248 Ariz. 601, 604, ¶ 12 (App. 2020) (noting “criminal
law’s general indifference to whether a defendant knows an act is
criminal”).

13
 STATE v. FOSTER
Opinion of the Court

¶49 Whether Foster was aware of it or not, Arizona law has long
recognized that a driver who engages in a contest of speed with another
vehicle may be criminally liable under Section 28-661 if he leaves the scene
after the other driver collides with a third vehicle. Korovkin, 202 Ariz. at
494-95, 498, ¶¶ 2-3, 30. The State was not required to prove, and thus the
court was not required to instruct the jury, that Foster was aware that his
conduct violated the statute. See State v. Morse, 127 Ariz. 25, 31 (1980)
(“[L]ack of knowledge that one’s conduct violated the law is no defense to
criminal liability.”); see also State v. Cumpton, 1 P.3d 429, 432, ¶ 15 (N.M. Ct.
App. 2000) (conviction for violating leaving-the-scene statute requires
showing that the defendant had “knowledge . . . of the factual circumstances
of the incident”) (emphasis added).

¶50 Because Foster never disputed his knowledge of the facts
giving rise to his criminal liability, we hold that court’s error in giving the
incomplete mens rea instruction was harmless. We reject, as without
support in the law, Foster’s contention that the superior court should have
instructed the jury that the State was required to prove that Foster
understood that his driving that culminated in the fatal collision constituted
“involvement” in a collision within the meaning of Section 28-661. In other
words, the State was not required to prove that Foster knew that his actions
were prohibited by statute, and the court’s failure to instruct the jury to that
effect entitles Foster to no relief.

C. Withdrawal Instruction

¶51 Foster argues that the superior court erred by refusing to give
a jury instruction describing his “theory of defense,” i.e., that even if he had
been “racing” Carrasco, he withdrew from the race before the fatal accident.
We review the refusal to give a jury instruction for abuse of discretion. State
v. Hurley, 197 Ariz. 400, 402, ¶ 9 (App. 2000).

¶52 Foster requested the following instruction, entitled
“Withdrawal from Racing (Theory of Defense)”:

If two parties are racing and one withdraws prior to the time
the other kills or injures a third party as a proximate result of
his speed, the party who withdrew is not criminally
responsible for the death of or injury to the third party.

¶53 Foster argues that the court erred in rejecting his proposed
withdrawal instruction because, he contends, it was “clearly supported by
the evidence.” The evidence shows, he argues, that he “slowed down” as
he approached the intersection of Hayden/Miller and Williams Drive.

14
 STATE v. FOSTER
Opinion of the Court

Accordingly, Foster contends, “[e]ven if [his] prior driving behavior could
be characterized as ‘racing,’ he had ceased any such activity well before the
fatal accident occurred.”

¶54 Foster’s proposed instruction would have informed the jury
that a motorist who timely withdraws from a race with another driver is
not criminally liable for the “death of or injury to” a third party. But the jury
acquitted Foster of all charges relating to Laura’s death and Jenny’s injuries.
Because Foster’s proposed instruction related only to the charges of which
Foster was acquitted anyway, the failure to give the proposed instruction
could not have “contribute[d] to or affect[ed] the verdict.” State v. Solis, 236
Ariz. 285, 287, ¶ 13 (App. 2014) (citation omitted). Foster is entitled to no
relief from the superior court’s failure to give an instruction which, by its
terms, applied only to charges of which he was acquitted.

D. Flight Instruction

¶55 The court gave the jury the following instruction:

Flight or Concealment

In determining whether the State has proved the defendant
guilty beyond a reasonable doubt, you may consider any
evidence of the defendant’s running away, hiding, or
concealing evidence, together with all the other evidence in
the case. Running away, hiding, or concealing evidence after
a crime has been committed does not by itself prove guilt.

¶56 Foster argues that the superior court erred by giving this
instruction to the jury, asserting that it constituted an improper comment
on the evidence because “it mimicked the elements of one of the offenses
charged against [Foster], i.e.[,] leaving the scene.”3 According to Foster, the
instruction improperly “told the jury that evidence of ‘leaving the scene’

3 Foster alternatively argues that “due to the many problems associated

with flight instructions, Arizona courts should join the ranks of other
jurisdictions that have dispensed with the giving of such instructions
altogether.” He acknowledges, however, that the Arizona Supreme Court
has found that flight or concealment instructions are appropriate under
certain circumstances, see State v. Weible, 142 Ariz. 113, 116-17 (1984), and
explains he is merely preserving the issue for review. Because we are bound
by the decisions of the Arizona Supreme Court, see State v. Brahy, 22 Ariz.
App. 524, 525 (App. 1974), we do not address this alternative argument.

15
 STATE v. FOSTER
Opinion of the Court

can be considered in determining whether the state has proved [Foster]
guilty beyond a reasonable doubt of ‘leaving the scene of an accident.’”

¶57 Foster’s argument overlooks the fact that the flight instruction
applied to the two other charged offenses, second-degree murder and
aggravated assault. If Foster believed that the jury could not properly have
considered the flight instruction in connection with the leaving-the-scene
charge, he could have requested a limiting instruction to that effect. He did
not, and his failure to request a limiting instruction warrants denying him
relief on this claim. See State v. Bolivar, 250 Ariz. 213, 219, ¶ 14 (App. 2020)
(failing to propose or request a limiting instruction at trial waives the issue
on appeal absent fundamental error).

¶58 Foster next argues that the facts did not justify giving a flight
instruction because “[t]here was no immediate pursuit, there was no
concealment or attempted concealment,” and Foster’s “actions did not
make him harder to find or camouflage his activities.” Instead, he “simply
proceeded home.” In response, the State contends that “the flight
instruction was appropriate because the trial evidence showed that Foster
concealed or attempted to conceal himself to avoid arrest.”

¶59 To determine whether the State has presented evidence to
support a flight instruction, courts apply the two-part test outlined by the
Arizona Supreme Court in State v. Smith, 113 Ariz. 298, 300 (1976). “First,
the evidence is viewed to ascertain whether it supports a reasonable
inference that the flight or attempted flight was open, such as the result of
an immediate pursuit.” Id. If there is no open flight or attempted flight, “the
evidence must support the inference that the accused utilized the element
of concealment or attempted concealment.” Id. In other words, the test
requires “evidence [that] allows [the] jury to be able to reasonably infer
from the evidence that the defendant left the scene in a manner which
obviously invites suspicion or announces guilt.” Solis, 236 Ariz. at 286-87,
¶ 7 (cleaned up). “We review the trial court’s decision to give a flight
instruction for abuse of discretion.” State v. Parker, 231 Ariz. 391, 403, ¶ 44
(2013).

¶60 Here, the record contains sufficient evidence to support an
inference that Foster “utilized the element of concealment or attempted
concealment.” Smith, 113 Ariz. at 300. Foster admitted at trial that upon
seeing the accident he deviated from his intended route along
Hayden/Miller and instead turned left at the intersection. Several
witnesses described Foster driving away from the intersection at a high rate
of speed. Foster’s benign characterization of his actions as “simply

16
 STATE v. FOSTER
Opinion of the Court

proceed[ing] home” provides an alternative explanation for his leaving the
intersection but does not preclude the giving of a flight instruction. See
Parker, 231 Ariz. at 404, ¶ 50 (observing that defendant’s alternative
“explanation for his flight did not preclude the trial court from giving a
flight instruction” but “simply created a fact question for the jury to
decide”). Further, Foster testified that the traffic stop did not make him
nervous until he saw the two detectives, at which point he became “very
nervous.” From this, a reasonable jury could infer Foster’s consciousness of
guilt regarding his decision to leave the scene. See State v. Medeiros, 997 A.2d
95, 97, 101, ¶¶ 4, 25 (Me. 2010) (noting that truck driver’s “panicked”
demeanor when stopped by law enforcement supported inference that he
knew that accident had occurred after load “fell off [his] trailer and into the
road”). Because Foster’s actions may invite “some suspicion of guilt,” see
Parker, 231 Ariz. at 404, ¶ 48 (citation omitted), the superior court did not
abuse its discretion by giving the flight or concealment instruction.

¶61 Foster next asserts that the instruction “violated due process
by eliminating [his] presumption of innocence” and “by lessening the
[State’s] burden of proof beyond a reasonable doubt.” The State responds
that “[t]he instruction was permissive in nature,” noting that, “it was within
the jurors’ discretion to ‘consider’ the evidence showing that Foster had fled
from the fatal crash and then concealed himself by avoiding police for two
weeks.”

¶62 “In assessing the constitutionality of jury instructions dealing
with presumptions, we must first determine if the presumption is
mandatory or permissive.” State v. Abdi, 226 Ariz. 361, 364, ¶ 9 (App. 2011).
“A mandatory presumption instructs the jury that it must infer the
presumed fact if the State proves certain predicate facts,” while “a
permissive inference suggests to the jury a possible conclusion to be drawn
if the State proves predicate facts, but does not require the jury to draw that
conclusion.” Peraza, 239 Ariz. at 147-48, ¶¶ 28-29 (cleaned up). And while
“[m]andatory presumptions represent an impermissible burden shift when
they relieve the State of the burden of persuasion on an element of an
offense,” id. at 147, ¶ 28 (cleaned up), “[t]he use of a permissive
presumption is constitutional if there is a rational connection between the
predicate and presumed facts.” State v. Platt, 130 Ariz. 570, 574 (App. 1981).

¶63 Here, the challenged instruction stated that “[i]n determining
whether the State has proved the defendant guilty beyond a reasonable
doubt, [the jury] may consider any evidence of the defendant’s running
away, hiding, or concealing evidence.” It expressly informed the jury that
flight or concealment “does not by itself prove guilt.” Interpreting this

17
 STATE v. FOSTER
Opinion of the Court

language “as a reasonable juror could have interpreted it,” see State v. Grilz, 136 Ariz. 450, 457 (1983), the instruction cannot reasonably be interpreted
as imposing a mandatory presumption. It did not instruct the jury that
evidence of flight or concealment, without more, could establish guilt, see
Platt, 130 Ariz. at 574 (explaining nature of mandatory presumptions), but
instead merely informed the jury that it “may consider any evidence” of
“running away” in determining guilt. See also State v. Tegart, 2 CA-CR
2015-0450, 2016 WL 4395348, at *2, ¶ 5 (Ariz. App. Aug. 17, 2016) (mem.
decision) (describing flight instruction as instructing on a permissive
inference). The instruction, in other words, permitted but did not require the
jury to consider evidence of flight in determining guilt. Because the
inference referred to in the flight or concealment instruction is not
mandatory, Foster’s argument that it unconstitutionally relieved the State
of its burden of proof is unavailing.

¶64 In any event, to the extent the flight or concealment
instruction was erroneously given, such error was harmless. At trial, Foster
never disputed that he left the scene knowing that an accident had
occurred. Foster’s awareness that his departure from the scene was
wrongful can be inferred from his admission that he felt “very nervous”
upon seeing the plainclothes detectives during the traffic stop because he
“had a feeling of why they were contacting [him].” Thus, even assuming
the flight or concealment instruction was inapplicable, it could not have
affected the verdict. See Dann, 205 Ariz. at 565, ¶ 18 (reviewing jury
instructions for harmless error). Accordingly, we will not disturb the jury’s
verdict on this ground.

II. Evidentiary Rulings

¶65 The standard of review for the admission or exclusion of
evidence is abuse of discretion. State v. Robinson, 165 Ariz. 51, 56 (1990).
Because Foster preserved all of the arguments addressed below by raising
them before and during trial, our review turns on whether any error
occurred and, if so, whether it was harmless. See State v. Reaves, 252 Ariz.
553, 569, ¶ 49 (App. 2022).

A. Detective Strohmeyer’s Testimony

¶66 After defense counsel cross-examined him, the prosecutor
asked Detective Strohmeyer if he believed the collision would have
occurred if Foster and Carrasco had not been racing. After the court
overruled Foster’s objection, the detective expressed his opinion that “the
crash wouldn’t have happened if they were not racing.” Foster challenges

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 STATE v. FOSTER
Opinion of the Court

the admission of this testimony on numerous bases, contending that the
detective’s “testimony on causation” was not properly disclosed before
trial, was “beyond the scope of direct examination,” and “was inadmissible
as either expert or lay opinion testimony.”

¶67 Assuming (without deciding) that the superior court’s
admission of the challenged testimony was an abuse of discretion for one
or more of the reasons asserted by Foster, such error was harmless. As the
State correctly points out, Strohmeyer’s testimony concerned whether
Foster’s actions were the but-for cause of the accident that killed Laura and
injured Jenny. But the jury specifically found that Foster did not cause the
accident. We do not find persuasive Foster’s contention that the testimony
was “extremely prejudicial” because of the purportedly close relationship
between “causation” and “involvement.” The fact that the jury found Foster
guilty of leaving the scene of a fatal accident (which requires
“involve[ment]” of the driver’s vehicle in an accident, see A.R.S.
§ 28-661(A)) but also found that Foster did not cause the accident makes clear
beyond a reasonable doubt that the jury recognized the difference between
“involvement” and “causation.” Thus, the admission of Strohmeyer’s
causation testimony did not contribute to the verdict, see Dann, 205 Ariz. at
565, ¶ 18 (so defining harmless error), and we will not disturb the jury’s
verdict on this ground.

B. Carrasco’s Driving Record and Related Evidence

¶68 Foster also challenges the superior court’s preclusion of
evidence that Carrasco had a history of poor driving, was involved in a
street racing club, and had THC in his system at the time of the collision.
According to Foster, such evidence was relevant to show that Carrasco was
solely responsible for the collision. He argues that the preclusion of this
evidence denied him the right to present a complete defense and “severely
prejudiced [him] because of the relationship between the issues of
‘causation’ and ‘involvement’ in the accident, especially in light of the
prosecutor’s [closing] argument explicitly conflating those two concepts.”

¶69 Under appropriate circumstances, a defendant may be
permitted to introduce so-called “third-party culpability” evidence at trial
“to show that someone else committed the crime.” State v. Machado, 226
Ariz. 281, 282, ¶ 1 (2011). When determining whether to admit such
evidence, a court must first determine its relevance, then engage in “the
normal [Rule] 403 weighing analysis between relevance, on the one hand,
and prejudice or confusion on the other.” State v. Prion, 203 Ariz. 157, 161,
¶ 22 (2002). “[T]he proper focus in determining relevancy is the effect the

19
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Opinion of the Court

evidence has upon the defendant’s culpability.” Id. at 161, ¶ 24 (cleaned up).
A court’s ruling on the admission of third-party culpability evidence is
reviewed for abuse of discretion. Id. at 161, ¶ 21.

¶70 Evidence that Carrasco had a history of reckless driving and
had THC in his system, even if accepted by the jury, would not exonerate
Foster for leaving the scene after the collision. Because Carrasco’s
recklessness in causing the collision does not excuse or mitigate Foster’s
subsequent departure from the scene, the proffered third-party culpability
evidence was irrelevant and properly rejected. See Ex parte Hall, 820 So. 2d
152, 157 (Ala. 2001) (holding that trial court properly precluded murder
defendant’s proffered third-party culpability evidence when it would not
exclude defendant as “an intentional participant” in the murder); see also
State v. Grewe, 1 CA-CR 17-0172, 2018 WL 1386170, at *2, ¶ 11 (Ariz. App.
Mar. 20, 2018) (mem. decision) (noting that “whether the victim or Grewe
was at fault for the accident was not relevant to determining Grewe’s guilt”
of charge of leaving the scene of a fatal accident because “[c]riminal
culpability [under § 28-661] is not limited to those who cause vehicular
accidents resulting in injury”).

C. Foster’s Statements to Law Enforcement

¶71 Finally, Foster contends that the superior court erred by
denying his motion to suppress the statements he made to the detectives
during the traffic stop before invoking his right to counsel. Foster argues
that the statements were the product of an unlawful detention and obtained
in violation of his constitutional right against self-incrimination under case
law interpreting the Fourth Amendment to the United States Constitution.

1. Roadside Detention

¶72 The Fourth Amendment “protects against unreasonable
searches and seizures,” and “[a]n investigatory traffic stop is a seizure
under the Fourth Amendment.” State v. Majalca, 251 Ariz. 325, 328, ¶ 12
(App. 2021) (citations omitted). Because it is “brief and limited in nature,”
however, a traffic stop does not require probable cause. Id. Instead, an
officer conducting a traffic stop “need only possess an articulable,
reasonable suspicion, based on the totality of the circumstances, that a
traffic violation has occurred.” Id. (cleaned up). The permissible duration of
a traffic stop “is generally limited by the time required for an officer to
address the reason that necessitated the stop.” Id. at 328, ¶ 13.

After the original purpose of the stop has been resolved, the
officer must permit the driver to leave without further delay

20
 STATE v. FOSTER
Opinion of the Court

or questioning unless: (1) the encounter between the officer
and the driver ceases to be a detention, but becomes
consensual, or (2) during the traffic stop the officer gains a
reasonable and articulable suspicion that the driver is
engaged in illegal activity.

State v. Angulo-Chavez, 247 Ariz. 255, 258, ¶ 7 (App. 2019) (cleaned up).
Police officers may not “involuntarily detain individuals even momentarily
without reasonable, objective grounds for doing so.” State v. Serna, 235 Ariz.
270, 273, ¶ 12 (2014) (cleaned up).

¶73 Foster does not deny the traffic violations that justified the
initial traffic stop. See Majalca, 251 Ariz. at 328, ¶ 12 (“An officer who has
observed a traffic violation has reasonable suspicion to initiate a traffic
stop.”). He argues, however, that the detectives “exceeded the permissible
bounds of a traffic stop” by questioning him about the August 3 collision.
He acknowledges that Terry v. Ohio, 392 U.S. 1 (1968) authorizes limited
detentions on less than probable cause but insists that Terry was not
intended to apply in circumstances like those presented here. In Foster’s
view, Terry authorizes “the warrantless seizure and questioning of
suspects” only when officers “are in the midst of investigating suspected or
recent criminal activity and must act quickly to protect themselves and
confirm or dispel their suspicions.” Here, he maintains, law enforcement
officers conducted an “obviously pretextual traffic stop” and then subjected
him to “a coercive roadside interrogation” under the guise of a Terry stop.
“This Court,” Foster concludes, “should not sanction the state’s use of these
ruses, pretexts, and attempts to stretch legal doctrines well beyond their
underlying rationales.”

¶74 Foster’s arguments are unavailing. The fact that the detectives
wanted to speak with him about the August 3 collision has no bearing on
the validity of the August 15 traffic stop, which was objectively justified by
traffic violations that Foster does not deny. An officer’s subjective motives
for initiating a traffic stop are irrelevant. See Whren v. United States, 517 U.S.
806, 811-13 (1996). Further, the detectives did not violate his rights when
they prolonged the stop beyond the initial traffic stop because they
reasonably suspected he committed a felony on August 3. See Majalca, 251
Ariz. at 329, ¶ 14 (App. 2021) (noting that officer may properly prolong
traffic stop if officer “develops a reasonable and articulable suspicion that
criminal activity is afoot”) (citation omitted). Foster’s suggestion that a
Terry stop is permissible only to investigate current or ongoing criminal
activity is contrary to the United States Supreme Court’s holding that “if
police have a reasonable suspicion, grounded in specific and articulable

21
 STATE v. FOSTER
Opinion of the Court

facts, that a person they encounter was involved in or is wanted in
connection with a completed felony, then a Terry stop may be made to
investigate that suspicion.” United States v. Hensley, 469 U.S. 221, 229 (1985)
(emphasis added).

¶75 In State v. Winegar, the defendant argued that her murder
conviction resulted from a confession obtained as a result of an invalid
arrest, 147 Ariz. 440, 442 (1985). Our supreme court held that the officers
did not effectuate an illegal arrest when they detained the defendant and
her boyfriend on a public street and conducted a pat-down search before
questioning them about a murder that had occurred several weeks earlier.
Id. at 445-47. Because the officers had reasonable suspicion that the
defendant was involved in the murder, the Winegar court held, the officers
were justified under Hensley in making a limited Terry stop to investigate
that suspicion. Id. at 446.

¶76 Here, the detectives had reasonable suspicion, grounded in
specific and articulable facts, that Foster was involved in a completed felony
on August 3. Several witnesses told investigating officers that the BMW had
been “racing” a blue Lamborghini with a first responder license plate which
left the scene after the BMW struck another vehicle, killing its driver. The
witnesses’ description of the Lamborghini was supported by video footage
from a nearby “photo radar site.” A record search revealed only a few cars
matching this description, one of which was registered to a business owned
by Foster. A Lamborghini dealership in Scottsdale confirmed that Foster
purchased the vehicle. This information gave rise to a reasonable suspicion,
grounded in specific and articulable facts, that Foster was involved in a
completed felony, and was therefore sufficient to justify a brief and limited
investigatory detention. Winegar, 147 Ariz. at 446; see also State v. Dixon, 153
Ariz. 151, 152-53 (1987) (holding that a police officer conducted “a
reasonable investigatory stop” when, upon seeing a hitchhiker who fit the
description of the suspect in a recent sexual assault, the officer stopped and
talked to him before arresting him).

¶77 In Winegar, the court held that after the initially valid Terry
stop, the officers impermissibly expanded the detention into a de facto
arrest when they required the defendant to accompany them across the
street to a municipal building for further questioning. 147 Ariz. at 446.
“After briefly searching and questioning the defendant on the street,” the
Winegar court held, “the police either should have arrested her if probable
cause had arisen, or, since none did, should have released her.” Id. at 447.
By expanding the scope of the detention, the court concluded, “the Terry

22
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Opinion of the Court

stop was abrogated” and the defendant’s resulting confession should have
been suppressed as “the result of [an] illegal arrest.” Id. at 447, 449.

¶78 The detectives here, by contrast, did not unlawfully expand
the scope of the initial Terry detention. On the contrary, one detective spoke
with Foster at the scene for less than five minutes and asked only a few
questions, all of which related to the August 3 collision. See also id. at 447
(stating that a stop’s duration and whether the stop continued beyond “the
purposes of limited inquiry” are essential “in determining whether the
initially lawful intrusion takes on the characteristics of an unlawful
detention”) (citation omitted). Unlike the defendant in Winegar, Foster was
not directed to move from one location to another pending further
questioning. Until he was placed under arrest, Foster was neither searched
nor physically restrained. Thus, the scope of the limited detention of Foster
did not exceed that permitted in a Terry stop.

¶79 Foster maintains that policy reasons compel this Court not to
“sanction” law enforcement’s use of a pretextual traffic stop to investigate
a completed felony. This argument is not supported by the law as stated by
the Arizona Supreme Court, which we are bound to apply. See, e.g., Jones v.
Sterling, 210 Ariz. 308, 311, ¶ 11 (2005) (“[E]vidence seized as a result of a
traffic stop meeting normal Fourth Amendment standards is not rendered
inadmissible because of the subjective motivations of the police who made
the stop.”) (cleaned up); Winegar, 147 Ariz. at 446 (“[P]olice officers [can]
perform Terry stops on persons suspected of past crimes.”) (emphasis in
original). Accordingly, we will not disturb the jury’s verdict on this ground.

2. Miranda Warnings

¶80 Noting that Miranda v. Arizona, 384 U.S. 436 (1966), requires
the police to warn in-custody suspects of their rights to remain silent and
to counsel before initiating questioning, Foster argues that “the officers
were required to advise him of his Miranda rights” prior to questioning
during the traffic stop and failed to do so. That failure, he contends, requires
the suppression of his statements at the scene. See State v. Aldana, 252 Ariz.
69, 72, ¶ 11 (App. 2021).

¶81 It is undisputed that Foster was not advised of his Miranda
rights prior to his arrest. Accordingly, the issue is whether he was “in
custody” during that portion of the roadside detention.

¶82 A person is considered in custody for Miranda purposes if the
person’s “freedom of action was significantly curtailed and, if so, [when]
the environment in which [the person] was questioned presented

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Opinion of the Court

inherently coercive pressures similar to a station house interrogation.” State
v. Maciel, 240 Ariz. 46, 50, ¶ 13 (2016). A motorist detained in a traffic stop
is not generally considered to be “in custody” for Miranda purposes but
may become so if “subjected to treatment that renders him ‘in custody’ for
practical purposes.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984).

¶83 Here, the parties agree that Foster’s freedom of movement at
the roadside was significantly curtailed. The issue, then, is whether the
environment at the scene presented “inherently coercive pressures similar
to a station house interrogation.” Maciel, 240 Ariz. at 50, ¶ 13; see also Howes
v. Fields, 565 U.S. 499, 509 (2012) (noting that “[n]ot all restraints on freedom
of movement amount to custody for purposes of Miranda,” and courts must
instead ask “the additional question whether the relevant environment
presents the same inherently coercive pressures as the type of station house
questioning at issue in Miranda”). “Inherently coercive pressures” will be
found if the questioning takes place in an environment that “threaten[s] to
subjugate the [person] to the examiner’s will.” Maciel, 240 Ariz. at 50, ¶ 16.
“Various objective factors can create an inherently coercive environment,”
including the site and duration of the questioning, the number of law
enforcement officers present, see id. at 50-52, ¶¶ 16-19, 26, and “the presence
or absence of physical restraints during the questioning,” Howes, 565 U.S. at
509.

¶84 The environment in which Foster was questioned did not
present “inherently coercive pressures similar to a station house
interrogation.” See Maciel, 240 Ariz. at 50, ¶ 13. The pre-arrest questioning
lasted less than ten minutes and occurred in full view of the public along
the side of a well-traveled road. See Berkemer, 468 U.S. at 438-39 (noting that
“the typical traffic stop is public, at least to some degree,” and “is
substantially less ‘police dominated’ than that surrounding the kinds of
interrogation at issue in Miranda”). Foster was neither handcuffed nor
placed in the back of a police vehicle when questioned. He was not
transported to a different location. See Howes, 565 U.S. at 511 (holding that
Miranda custody may arise where a person is “abruptly transported from
the street into a police-dominated atmosphere”). During the evidentiary
hearing, Detective Johnson explained that he had Foster exit his vehicle for
questioning because he “felt it would be safer” to avoid “standing there
partially . . . in the road,” given that it was a “pretty narrow road.” Only three
law enforcement officers, the motorcycle officer and the two detectives,
were present. See Berkemer, 468 U.S. at 438-40 (holding that traffic stops are
generally not “custody” for Miranda purposes in part because of the limited
police presence; “[T]he detained motorist typically is confronted by only
one or at most two policemen.”). Although armed, none of the officers had

24
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Opinion of the Court

a weapon drawn. A detective asked Foster “only a few questions, all within
the scope of the investigation,” and “did not threaten force, make
exaggerated displays of authority, or otherwise employ coercive tactics.”
See Maciel, 240 Ariz. at 52, ¶¶ 26-27. Because the circumstances of Foster’s
roadside questioning simply did not present the “inherently coercive
pressures” indicative of custody for Miranda purposes, the superior court
did not err by denying Foster’s motion to suppress statements made during
his roadside questioning.

¶85 Finally, Foster argues that the detective violated his
constitutional right to remain silent by continuing to question him after he
stated, “I really shouldn’t say anything.” Specifically, the detective
responded by telling Foster that “some witnesses” had seen Foster’s
Lamborghini in the area of the collision, at which point Foster replied, “I
really don’t want to say anything. I saw a kid driving crazy.” According to
Foster, by making these two statements, he invoked his right to remain
silent, and thus the detective “was forbidden by law from engaging in any
further interrogation except to clarify what [Foster] meant.”

¶86 Foster’s argument is unavailing because it relies on the
incorrect premise that he was in custody for purposes of Miranda when he
made the statements at issue. See State v. Carter, 145 Ariz. 101, 107 (1985) (“If
a person is subjected to custodial interrogation and indicates a desire that
interrogation cease or otherwise invokes his right to remain silent, this
decision must be scrupulously honored by the police.”) (emphasis added).
Assuming arguendo that Foster’s statements “indicate[d] a desire that
interrogation cease,” Carter, 145 Ariz. at 107, that invocation was ineffective
because, for the reasons discussed in ¶¶ 82-84 supra, Foster was not in
custody at the time. See State v. Payne, 233 Ariz. 484, 501, ¶¶ 38-39 (2013)
(holding that defendant’s “initial invocation” of his Miranda rights “was
ineffective” because he “was not in custody,” in part because “the police
had not indicated that he was suspected of committing a crime, had not told
him he was under arrest, and had not drawn their guns”; “[A] non-
custodial, anticipatory invocation of [Miranda] rights is not effective.”).
Foster is not entitled to relief on this ground.

CONCLUSION

¶87 For the foregoing reasons, we affirm.

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 STATE v. FOSTER
Cattani, J., dissenting

C A T T A N I, Judge, dissenting:

¶88 I agree with the Majority that this case was marred by
instructional error. In my view, however, the error extended beyond the
knowledge instruction to the involvement and flight instructions, and the
error was not harmless.

¶89 The jurors were not told that knowledge of involvement in an
accident is an essential element of the criminal offense of leaving the scene
of an accident. And they were incorrectly instructed that a participant in
drag racing—without regard to whether the participant had stopped racing
at some point before the accident—was “involved” “by any measure” in the
collision and thus required to remain at the scene. This was error.

¶90 Of course, such instructional error may be harmless if, beyond
a reasonable doubt, “the error did not contribute to or affect the verdict.”
See State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). But here, the error was
not harmless precisely because there was evidence from which a reasonable
juror could conclude that Foster was not aware he had been involved in the
accident. Foster’s car did not strike another vehicle. And in contrast to the
driver of the BMW that was moving at more than 100 MPH through the
intersection and into the impact, Foster slowed down before arriving at the
crash site and in fact made a safe turn at the intersection to avoid the
crashed vehicles. The jury acquitted Foster of aggravated assault and
homicide charges (including all lesser-included offenses) related to the
Toyota driver’s death and the BMW passenger’s injuries. Moreover, the
jury specifically found the State had not proved that Foster caused the
accident. Given these circumstances, a properly instructed jury could have
concluded that the State did not prove that Foster knew or should have
known that he had been involved in an accident and was thus required to
remain at the scene. Accordingly, I would set aside his conviction.

¶91 The Majority posits that the “Involvement in Collision”
instruction given “accurately reflects Arizona law as set forth in Korovkin.”
See supra ¶ 32. But the issue in Korovkin was simply whether one could be
involved in an accident without physically colliding with another vehicle.
202 Ariz. at 497, ¶ 13. And the Korovkin court did indeed offer a definition
of involvement (one that did not require physical contact):

According to Webster’s Third New International Dictionary
1191 (1971), “involve” means “entangle, [or] implicate” and
“to draw in as a participant.”

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 STATE v. FOSTER
Cattani, J., dissenting

202 Ariz. at 497, ¶ 15 (alteration in original). The Korovkin court also noted
other jurisdictions that had addressed the issue and included a definition
from a Washington appellate court:

“Involved” is an imprecise term incorporating such concepts
as being part of, contributing to and being a participant.

Id. at ¶ 16.

¶92 Ironically, the instruction given in this case did not track the
express definitional language adopted in Korovkin and instead mirrored the
legal conclusion the Korovkin court reached when applying the definition to
the facts of that case.4 The instruction read:

A driver who races another driver who collides with a third
car, may be found to have actively participated in the
immediate chain of events culminating in the collision and, by
any measure, have been a participant and implicated and
entangled in the accident for purposes of leaving the scene of
an accident including injury or death without regard (or
condition upon) actual physical contact with the struck
vehicle.

(Emphasis added.) To be sure, this instruction includes some of the
concepts from the actual definition (e.g., participate, implicate, entangle),
but it goes too far. This instruction is flawed because nothing in A.R.S. § 28-
661 suggests that anyone who has participated “by any measure” in car
racing is necessarily “involved” in every collision between a racer and
another vehicle.

¶93 The Legislature did not craft an absolute requirement that
anyone involved in any way in drag racing must remain at the scene of an
accident. And this court likewise should not impose any such requirement,
particularly without considering whether a driver withdrew from racing at

4 The Korovkin court’s conclusion on which the instruction was based
reads in full:
We have no trouble concluding that a driver who races
another driver who collides with a third vehicle actively
participates in the immediate chain of events culminating in
the collision and, by any measure, has been a participant and
is implicated and entangled in the accident, notwithstanding
any absence of actual physical contact with the struck vehicle.
202 Ariz. at 497, ¶ 15.

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 STATE v. FOSTER
Cattani, J., dissenting

some point before a collision occurred. Foster’s requested “Withdrawal
from Racing” instruction, see supra ¶ 52, was, perhaps, flawed insofar as it
incorrectly suggested that withdrawal at any point “prior to the time the
other kills or injures a third party” necessarily precludes a finding of
involvement. But the concept of withdrawing from racing is relevant to
whether a defendant remained entangled, implicated, or a participant in the
collision. See Korovkin, 202 Ariz. at 497, ¶ 15. At a minimum, a jury should
be tasked with deciding whether the defendant withdrew soon enough (or
was otherwise distant enough) not to be involved in the collision. And here,
Foster’s testimony that he had stopped racing well before the accident
squarely raised the issue—an issue that the jury was essentially precluded
from considering because of the instruction stating that participation in
racing “by any measure” equated with entanglement in the accident.

¶94 This confusion as to whether Foster was factually involved in
the accident was further complicated, as the Majority agrees, by the
superior court’s failure to instruct the jury that knowledge of involvement in
an accident is an essential element of the offense. See supra ¶¶ 40–44. And
these flaws were amplified yet again by the court’s decision to give a flight
instruction (at least by doing so without expressly limiting it to the relevant
charges). See supra ¶¶ 55–57. The jurors were instructed:

In determining whether the State has proved the defendant
guilty beyond a reasonable doubt, you may consider any
evidence of the defendant’s running away, hiding, or
concealing evidence, together with all the other evidence in
the case. Running away, hiding, or concealing evidence after
a crime has been committed does not by itself prove guilt.

A flight instruction—as applied to the crime of leaving the scene of an
accident—is nonsensical. “Running away” is arguably a pejorative
synonym for “leaving,” so telling the jurors that the fact that someone “ran
away” from the scene of the accident is evidence of guilt of “leaving the
scene” of an accident is an improper comment on the evidence. See Ariz.
Const. art. VI, § 27; Rodriguez, 192 Ariz. at 63, ¶ 29.

¶95 The Majority agrees that Foster was entitled to a different
instruction on knowledge—one that required the State to prove Foster
knew or should have known he had been involved in the accident. See supra
¶¶ 40–44. The Majority posits, however, that the error was harmless
because “the facts establishing the missing element are undisputed.” See
supra ¶¶ 45–46. The Majority asserts that Foster “never disputed his
knowledge of the facts giving rise to his criminal liability” because he was

28
 STATE v. FOSTER
Cattani, J., dissenting

aware that he “engage[d] in a contest of speed with another vehicle.” See
supra ¶¶ 49–50; see also supra ¶ 46 (facts bearing on racing). But the
Majority’s position presupposes that knowledge of participation in drag
racing necessarily results in knowledge of involvement in a collision if one
of the racers collides with another vehicle. That position ignores the factors
detailed above, most notably the question of whether a racer whose car did
not collide with another vehicle has withdrawn from racing, a fact that was
hotly disputed in this case.

¶96 Given the disputed issue of whether Foster had withdrawn
from racing before the accident, and in light of this combination of
instructional errors and omissions that did not clarify and in fact confused
the issue of involvement and knowledge thereof, I would reverse Foster’s
conviction.

¶97 Finally, although not critical to the resolution of this case, I
note my disagreement with Korovkin to the extent it can be interpreted as
suggesting that a defendant who was not physically involved in the
collision can be guilty of leaving the scene of the accident without having
caused the accident.

¶98 The Korovkin court noted that “[t]he primary purpose of
A.R.S. § 28-661 is to ‘prohibit drivers from seeking to evade civil or criminal
liability by escaping before their identity can be established.’” 202 Ariz. at
498, ¶ 18 (quoting State v. Powers, 200 Ariz. 363, 364, ¶ 9 (2001)). On the
criminal side, the Korovkin court concluded that the defendant driver in that
case was sufficiently involved to be potentially criminally liable for the
victim’s death, either as an accomplice or as a principal, even though he
was in fact found not guilty of second-degree murder, negligent homicide,
or manslaughter. Id. at ¶ 20. As to the potential for civil liability, the
Korovkin court found “instructive” the following example from the
Restatement (Second) of Torts:

A and B are driving automobiles on the public highway. A
attempts to pass B. B speeds up his car to prevent A from
passing. A continues in his attempt and the result is a race for
a mile down the highway, with the two cars abreast and both
traveling a dangerous speed. At the end of the mile, A’s car
collides with a car driven by C and C suffers harm. Both A
and B are subject to liability to C.

Id. at ¶ 19 (quoting Restatement (Second) of Torts § 876 cmt. a, illus. 2
(1979)). I agree that the driver of a car racing side by side with another car

29
 STATE v. FOSTER
Cattani, J., dissenting

that strikes a third vehicle (as in the Restatement’s example) can be found
to have been involved in the accident. In that situation, jurors could
reasonably conclude that both drivers participating in the racing “caused”
the accident, and under that scenario, I would hold that the driver of each
racing vehicle must remain at the scene of the accident.

¶99 Korovkin does not mention, however, whether the jury was
asked to decide whether the defendant “caused” the accident. See generally
id. at 495–99, ¶¶ 4, 11–21. Korovkin thus does not address whether a person
can be found liable for leaving the scene if they did not cause the accident.

¶100 In my view, the answer to that question is no. If a defendant
is acquitted of criminal charges stemming from, e.g., the injuries and death
resulting from the accident, and the jury further concludes that the
defendant’s conduct did not cause the accident, I would hold that there is
no criminal liability under A.R.S. § 28-661. “Involvement” in a collision
obviously includes the drivers of cars that collide, regardless of fault. But
for drivers of other cars that have not collided, from my perspective, the
only rational conclusion regarding “involvement” is that other drivers are
not involved unless they in some way causally contributed to the accident.
In fact, to conclude otherwise would render the statute unconstitutionally
vague. See Kolender v. Lawson, 461 U.S. 352, 357–58 (1983) (holding that the
Government violates the Due Process Clause when it takes away someone’s
life, liberty, or property under a criminal law so vague that it fails to give
ordinary people fair notice of the conduct it punishes).

¶101 The Legislature is free to craft additional responsibilities and
impose additional consequences for anyone who engages in drag racing.
But unless the Legislature does so, I would interpret A.R.S. § 28-661 as
requiring only that anyone whose vehicle collides with another vehicle and
anyone who caused the collision must remain at the scene of the accident.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

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